The intersection of criminal law and immigration law

Can a sock result in removal? That’s the practical question that the Supreme Court will have contend with when it hears oral arguments in Mellouli v. Holder tomorrow. To clarify the case, crImmigration.com is launching an online symposium today featuring several practitioners and scholars with special insight into the key issues Mellouli raises.

Today’s contributors—Alina Das, Jennifer Lee Koh, Nancy Morawetz, Maureen Sweeney, and Craig Shagin—represent a cross-section of academics and practitioners who have followed the issues that Mellouli raises for some time. All bring unique insight—whether it’s in-the-trenches strategizing, deep reflection, or a combination of both.

To lay a foundation for their analyses, I’ll provide a quick overview of the legal background from which Mellouli rises. At bottom, Mellouli addresses the breadth of drug-based removal. The Immigration and Nationality Act (INA) contains, as I explain in my forthcoming book Crimmigration Law (American Bar Association 2015), “a sweeping provision that ensnares most drug offenses.” The controlled substance offense—found in similar forms at INA § 237(a)(2)(B)(i) and § 212(a)(2)(A)(i)(II)—authorizes removal upon conviction for any offense “relating to a controlled substance offense.” Though this language captures a substantial number of drug crimes, it’s not without limit. “Since 1965,” I explain in my book, “the BIA has steadfastly maintained that a state drug possession crime can result in deportation or exclusion only if the government shows that the conviction necessarily involved a substance punished by federal drug laws.” See Matter of Paulus, 11 I&N Dec. 274, 276 (BIA 1965).

Mellouli threatens that longstanding limitation. Relying on the “relating to” language, the Board of Immigration Appeals concluded in 2009 that the controlled substance offense provision captures any “conduct associated with the drug trade in general.” Matter of Espinoza, 25 I&N Dec. 118, 121 (BIA 2009). Enter the Eighth Circuit. In Mr. Mellouli’s case, it adopted the BIA’s position. As I explain in Crimmigration Law:

Adopting the BIA’s interpretation as reasonable, the Eighth Circuit added that the “relating to” phrase “reflects congressional intent to broaden the reach of the removal provision to include state offenses having ‘a logical or causal connection’ to federal controlled substances,” and concluded that any drug paraphernalia conviction in a state that has adopted the Uniform Controlled Substances Act satisfies this requirement.[1] Taking a similarly broad view, the Seventh Circuit concluded that a conviction “for distributing substances that substantially resemble controlled substances”—i.e., giving an undercover police officer a chocolate bar that purportedly contained, but did not actually contain, a hallucinogenic included in the federal CSA—related to a controlled substance offense because the “state law is focused on punishing those who distribute substances that would lead a reasonable person to believe it to be a controlled substance.”[2]

Will the Supreme Court follow the BIA and Eighth Circuit? Or will it hew more closely to the longstanding requirement that a state drug offense must necessarily involve a federal controlled substance to result in removal? Equally importantly, will it hold DHS to its burden of proving this essential overlap when the federal government is attempting to remove someone who has been admitted?

Time will tell. For now, let’s turn to the outstanding analyses contributed by the symposium participants.

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February 5: Quoted in article about Indiana death in drunk driving incident allegedly caused by unauthorized migrant [Read article here]

January 31: I'm quoted in San Francisco Chronicle about ICE's policy of arresting people in and near courthouses [Read article here]

January 18: I talked to CityLab about symbolic value of ICE raids on 7-11 stores [Read article here]

January 8: I'm quoted in Governing talking about ICE head's threats to imprison elected officials who support policies limiting cooperation with ICE [Read article here]

January 5: I'm quoted in article about San Antonio Police Department decision to prosecute alleged migrant smuggler under state law rather than hand over to ICE for federal prosecution [Read article here]

January 3: Quoted in article about ICE chief's threats to imprison elected officials who support migrant-friendly policies [Read article here]

2018

December 30: I'm quoted in The Atlantic discussing the special impact crimmigration policies have on black migrants [Read article here]

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The information contained on these pages must not be considered legal advice and does not create an attorney-client relationship. This work by www.crImmigration.com is licensed under a Creative Commons Attribution 4.0 International License.